Calvillo’s Top 10 Tips to Settling Complex Cases at Mediation
The focus of this discussion is the settlement at mediation of the complex case. A complex case could involve multiple parties, numerous claims, a technical subject matter, or multiple disputes in different forums or a combination thereof. A review of these factors is meant to identify the areas which counsel in the complex case should address or at least think about prior to mediation in order to provide their case (and clients) with the best opportunity to settle at the mediation.
This list, which is, of course, not intended to be an exhaustive list, is derived from my experience as an attorney in numerous complex cases on both sides of the docket in a fairly wide variety of practice areas but also most recently, from my observations as a mediator for the past 5-6 years.
This discussion is intended to serve as a checklist for attorneys to review and decide how and whether it may apply to the facts of their unique case. Counsel should have a relationship with their clients prior to mediation so that they can understand their uniqueness and should then review these factors so that they before they submit their complex case to mediation, counsel can posture the case so that it will have its best chance to settle at mediation.
- Select the right mediator for your case.
- Ensure that the timing of the mediation is conducive to a resolution.
- Have all of the decision-makers physically present.
- Identify any emotional or special issues to the mediator.
- Be committed to the process. Be prepared to stay. Be open-minded.
- Think about what the settlement agreement might look like. Be ready to “close the deal.”
- Trust the mediator.
- Adjust your style for mediation. “Lines in the sand” are not useful, especially in complex cases.
- Be prepared.
- Inform the mediator of the issues- complete the mediator’s submission statement. Include key documents if possible.
- Opening presentation- keep it brief.
- Simplify. Demonstrate how you’ve distilled complexity for jury’s digestion
- Be patient.
- Select the right mediator
- Subject matter
- Personalities
- Gender
- Language
- Other considerations
Although the mediator is not a decision maker, the mediator’s understanding of the particular subject matter in your complex case may be instrumental in understanding the issues and corresponding unique opportunities for a resolution of the case. If the complex case is complex because of the subject matter, then care should be especially taken to select a mediator who may have a background in the particular subject matter. For example, a mediator whose experience as an attorney was comprised largely in intellectual property issues may not be the best mediator for a wrongful death- products liability case with federal preemption issues. Similarly, a former tort lawyer may not be best in a complex construction case.
The most successful mediators are those whose personalities permit them to adapt to and relate to different types of litigants and counsel but mediators naturally have their own unique personalities. So mediators who are naturally more direct may be better for those litigants or clients who may need a heavier approach at mediation. Other litigants may benefit from a softer approach. Although one might think that personality might not have as much influence in a complex case where presumably more experienced litigants would be involved, my experience tells me that human nature is human nature and personalities come into play in any case and in any mediation- complex or not complex. One might argue that the role of personalities at mediation are even more prominent as the stakes become more pronounced.
Even in this day and age, attorneys still encounter clients who are particularly sensitive to gender chauvinism. Recently, I have encountered cases in which one party or another would not listen to the perspective of a female lawyer. Accordingly, when the opposing side suggested a very qualified and experienced female mediator, I knew that she would not be a good fit for the settlement of this case so I reluctantly agreed with my co-counsel that perhaps a male mediator would be best for the case. Again, the objective was to posture that particular case to afford its best opportunity to settle. Accordingly, a change in strategy had to occur.
In order to establish a relationship or professional rapport with litigants, a mediator must be able to communicate effectively with them. This obviously cannot occur if they speak an entirely different language.
Some counsel believe that mediators who are familiar with the venue where the case is pending is important. They suggest that this is necessary in order to understand jury trends or past experience and/or likely personality of the judge.
- Ensure that the timing of the mediation is conducive to a settlement
Throughout the life of any given litigation, there are numerous crossroads at which a settlement is possible or even probable. In a case, for example, in which an insurance policy is a cannibalizing insurance policy, or one in which defense costs reduce the amount of insurance coverage available to pay the claim, the best opportunity for a resolution may not be at the eve of trial but rather after the exchange of some minimal written discovery. In other cases, a psychological barrier to settlement might be encountered after some of the key depositions have been taken and thus, an opportunity for settlement is encountered before those depositions are taken. Thus, it is incumbent upon the wise and experienced counsel to identify those crossroads as they are encountered and schedule the mediation accordingly.
- Have all of the decision-makers physically present
There is no substitute for having the decision makers physically present during the mediation. The complex case will usually require that the more experienced parties with substantial decision making authority within their respective organizations be aware of the status of the litigation. Such individuals presumably would have the savvy and internal knowledge to be able to adjust to unexpected developments at the mediation. Although with open discovery, true surprises are not often revealed at mediation but when they do, I have found that it is more often than not in the complex case. It can be a witness whose demeanor or presence may not be fully appreciated in the cold detached print of a deposition transcript or witness statement. It can be a unique and unexpected argument spun from the same set of facts that have already been fully communicated by one side’s counsel. In either event, the decision makers need to be present at the mediation to permit the case to fully exploit the best opportunity for a successful resolution. Merely being “present by telephone” is not helpful.
- Identify for the mediator any special or emotional issues
In the complex case, obstacles to settlement may exist that may not be contained by or exist within that one case itself. For example, business litigants may be concerned that the “settlement” of that one case may impact other potential cases and “open the floodgates” to other litigation for that defendant. This may be handled, of course, by carefully and strictly worded confidentiality clauses or even perhaps strong economic disincentives to the “spread” of that other feared wildfire. If the mediator is apprised of this issue early on, the mediator can be open to conceiving a solution and laying the groundwork with the opposing side early on in the mediation process. Similarly, in more individual cases, emotion may be an obstacle. Pride, anger, or grief are also potential obstacles. In this scenario, the intensity of the emotional attachment to the litigation or the reaction to statements made by adversaries are just as real potential obstacles to the ultimate resolution of the complex case as the fear or commercial litigants of the spread of the litigation. The mediator in the complex case must be sensitive to this potential impediment and must actively manage this potential problem to mitigate its impact. In fact, the experienced mediator may actually be able to leverage that emotion into a catalyst for settlement.
- Be committed to the process.
The complex case, even more so than other litigation, requires the players to be aware that mediation is a process and sometimes the best recipe calls for the soup to stew for a time before it is ready to be enjoyed. Stumbling blocks along the way in a mediation are to be expected. The parties in a mediation should be aware that the mediator does not possess a magic wand that can simply and quickly wave away the complexity and the areas of disagreement. All cases can be resolved at mediation if the parties want to enlist in the process and let that process run its course. I like to say that sometimes mediations require a time for “seduction” – a seduction of the parties into the idea that the case that some of the parties had only visualized as a trial might be resolved instead in an agreement. Such a reality can sometimes only be accomplished by concerted effort by everyone to make it happen. Sometimes that doesn’t occur until the end of the day or even past the end of the day. So, be prepared to stay the whole day or even another day. Devote the necessary time. The process of mediation and the wisdom of seeking a settlement should be permitted an adequate amount of time and resources. This dedication of resources can also include a willingness to think creatively and be open to suggestions or concepts that one might not have been familiar prior to the mediation. Sometimes, sending individuals to the mediation who are open-minded and possess credibility with the parties is the best tool to maximize the opportunity for a successful settlement.
- Think about what the settlement agreement might look like. Be ready to “close the deal.”’
Sometimes the “complex” case is “complex” because the litigation is affected by statutory, regulatory, political, or other issues that prevent the matter from being addressed (or resolved) in a vacuum. For example, the case may not be able to be fully resolved without the approval of a governmental body or agency. That reality should be considered and anticipated prior to the mediation so that the mediator can inform himself of ways to address that issue so that the mediation agreement can be finalized as much as possible pending that third party approval. The mediator can be of some assistance in this type of situation if apprised in the pre-mediation Report to the Mediator.
Time and effort should be devoted to these issues prior to the mediation by specific members of the litigation team so that the underlying research and acceptable language can be ready and in place at the mediation in order to help close the deal if all the other chips fall into place.
- Trust the mediator
- Don’t waste my time.
- “Peek behind the curtain”.
As an attorney, as an advocate for a party, I appreciate the mediator who does not waste my time. Parties in the complex case should obtain a commitment from the mediator that he/she will not “waste their time.” A waste of time occurs when a side in the complex case will not or cannot make any concessions or adjustments to their pre-mediation positions to further the cause for a mediation resolution. If the mediator commits to the parties to not wasting anyone’s time and commits to only continue with the mediation so long as issues are still being developed, or positions are still evolving or possess the realistic hope of evolving, then the parties should trust in the mediator and not be discouraged if the progress is not as dramatic or as quick as anticipated or desired.
Additionally, another element of trust involves trusting in the person of the mediator. Sometimes, parties feel that the mediator is too closely “aligned” with one side or another and thus does not “trust the mediator.” If a truly professional and ethical mediator has been selected, then the issues of divulging of confidences or strategies will not be an issue for the parties to be concerned about. If the parties still do not trust the mediator, then an opportunity might be lost to utilize the experience and objectivity of the mediator to utilize the additional information that the trust provides him to maneuver the case to a successful resolution. In the complex case, the parties are often more reluctant than other parties to fully “trust the mediator.” It is more often than not, the complex case that could benefit the most from trust in the mediator- sometimes when the mediator is permitted to earn a “peek behind the curtain” of all sides to the litigation, then the mediator can determine that both sides are standing in the same room – with positions much closer to each other than they themselves realized.
- Be Mediation Advocates not Trial Advocates
The typical stereotype of the “trial lawyer” is that of the hard charging, testosterone driven warrior intent on the opportunity to persuade a jury of the justness of his view of this complex case. While that role may be a necessity in certain cases and at certain stages of the process, a mediation is not litigation. An entirely different set of skills are necessary for a mediation. Trial advocates sometimes cannot resist the temptation to “draw the line in the sand” out of their general trial machismo and then find themselves painted in the corner and then lose the opportunity to settle the case at mediation. The wise advocate leaves the trial jock part of himself or of his team at the office and brings instead the party who is an advocate for a successful settlement to the mediation of the complex case. the wise mediation advocate can think strategically and creatively about ways to present unique perspectives or opportunities to the mediator so that the case can be placed on a path toward a successful resolution.
- Be prepared.
- Inform the mediator of the issues- complete the mediator’s submission statement. Include key documents if possible.
- Opening presentation- keep it brief.
- Simplify. Demonstrate how you’ve distilled complexity for jury’s digestion
As discussed above, the mediator should be apprised of some of the issues that make your case unique. The professional mediator’s experience and skill cannot be fully utilized if he or she is not made fully aware of the facts that stand as issues that need to be addressed in any possible settlement of the matter.
Rarely – almost never - is a media presentation (such as a “day in the life” video or Powerpoint summary) longer than ten to fifteen minutes effective during an opening session to promote a settlement at mediation. The opening presentation in a general caucus should be very brief and merely serve as an introduction of the parties and the issues. I have found that it is much more effective for a party to deploy such presentations later in the day during breaks in the shuttle diplomacy proceeding during the day of mediation. I have observed that they often help to prevent and/or avoid imminent impasses.
A produced presentation longer than fifteen minutes begins to annoy and irritate the opposing side in a manner that does not promote the spirit of cooperation desired in mediation.
In a complex case, the temptation in mediation is to demonstrate to the opposing side how prepared one is by detailing defenses to each of the issues that might be asserted against them. While that may demonstrate thoroughness, it is much more effective to demonstrate the true genius and artistry of the good lawyer by distilling the complex case into one or two short simple themes. During a mediation, the other side is not a jury but rather the mediation is at least partially to demonstrate how one side’s view of the case could be presented and viewed by a potential jury. Making the difficult seem simple is true genius- and ultimate more effective as a sign of one’s strength.
- Be patient.
Give your case the best opportunity to settle. Give some thought to how to prepare and posture your case at mediation to permit the process to work. This is even more applicable in the complex case, in which advance planning will be necessary to permit the case to be postured to maximize the opportunities for a successful resolution during mediation.
Consider using these tips as a general checklist of the factors that you should consider as you comply with your court’s mediation requirement or as you begin to discuss the possibilities of a settlement with your client.
